Academic journal article Denver Journal of International Law and Policy

In Pursuit of Reconstructing Iraq: Does Self-Determination Matter?

Academic journal article Denver Journal of International Law and Policy

In Pursuit of Reconstructing Iraq: Does Self-Determination Matter?

Article excerpt


Since the U.S.-led "coalition of willing" (1) invaded Iraq and toppled the Saddam Hussein regime, Iraq has effectively been under the control of the Coalition forces. (2) One can argue that the Iraqi territory is under belligerent occupation pursuant to international law. (3) As an occupying power, the United States and its allies are vigorously attempting to reconstruct Iraq and eradicate the sources of threat to international peace and security. (4) Among politicians and academics around the world, the legality of the war in Iraq was perhaps the single most controversial issue in the year 2003. (5) States opposing the attack on Iraq invoked the principles of the U.N. Charter, (6) while those supporting the cause of the war based their arguments on numerous U.N. Security Council (7) resolutions and the allegedly imminent threat of the Hussein government that justified the use of force in self-defense. (8) It is even suggested that international law should accept a new paradigm of "collective duty" to prevent unruly regimes from threatening global security with weapons of mass destruction (WMD). (9)

However, there is another important question that one needs to address: how to end the war. There seems to be a long way to go before peace and stability replace the current turmoil in Iraq, and the intermittent violence directed against the occupying powers ceases. (10) Nevertheless, the challenge of restoring public order and safety has come to the forefront, which appropriately leads to question, "How does the Coalition end the war?"

The main motivation for the United States and its allies was to remove the "alleged threat" to international peace and security posed by the former Iraqi leader, Saddam Hussein, in the form of his ostensible WMD programs. (11) No one would deny that the future reconstruction of Iraq should be aimed at enabling the Iraqi people to freely pursue freedom and economic recovery. Moreover, the new Iraq needs to address the issue of the long-standing divisions among diverse internal sectarian groups, the Shi'ites, the Sunnis, and the Kurds, in order to build a stable social and political structure serving the peoples' needs. (12) Therefore, the dual tasks of (1) completely eliminating all sources of threat and (2) reconstructing Iraq to serve the interest of its people are fundamental issues to address. The answer to the question "how to end the war?" may be found by undertaking a thorough analysis of the legal implications of belligerent occupation. This is appropriate since the current occupation is at a critical phase during which a new foundation for the political and social systems will soon be established in the devastated country.

The law of belligerent occupation provides a basic framework to determine how, and to what extent, the rights of the Iraqi people should be protected as the war nears its end. As the occupying power builds a new political and social structure for Iraq, close attention must be directed to the Iraqi people's choices and preferences. This U.N. Security Council adopted Resolution 1511 on October 16, 2003. (13) The Resolution reaffirms the "right of the Iraqi people freely to determine their own political future and control their own natural resources." (14) Although the Resolution does not explicitly mention the term 'self-determination,' it strongly implies that self-determination is at issue. (15) In other words, one is faced with the question of how to accommodate the right to self-determination within the context of belligerent occupation.

The concept of self-determination was not salient at the time of conclusion of the Hague (16) and the Geneva Conventions (17) concerning the laws and customs of war, which sought to regulate the status of the occupying powers. (18) In fact, the self-determination theory was once denounced as political rhetoric. (19) Throughout the twentieth century, however, the international community has gradually accepted this theory as one of the most robust principles of international law. …

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